Citation Nr: 9923344
Decision Date: 08/18/99 Archive Date: 08/26/99
DOCKET NO. 97-34 028 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to an initial evaluation in excess of 20
percent for a left knee injury with tear of the anterior horn
of the lateral meniscus.
2. Entitlement to an increased evaluation for residuals of a
right ankle injury, currently evaluated as 10 percent
disabling.
3. Entitlement to service connection for a right great toe
disability.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Amanda Blackmon, Counsel
INTRODUCTION
The appellant served on active duty for training from
February 1978 to June 1978. He also served with the
Washington National Guard from January 1990 to April 1990.
This matter comes before the Board of Veterans Appeals
(Board) on appeal from a June 1996 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO), in
Houston, Texas. The RO, in pertinent part, determined that
the claim of entitlement to service connection for a right
great toe disability was not well grounded, denied
entitlement to an increased evaluation for residuals of a
right ankle injury, and determined that the claim of
entitlement to service connection for a left knee disability
as secondary to service-connected residuals of a right ankle
injury was nor well grounded.
In May 1997, the RO affirmed the determinations previously
entered, and granted entitlement to service connection for a
left knee injury with tear of the anterior horn of the
lateral meniscus with assignment of a 20 percent evaluation.
The RO has characterized the issue on appeal with respect to
a right great toe disability as whether new and material
evidence has been submitted to reopen a claim of entitlement
to service connection for a right great toe disability.
However, the Board notes that the veteran in July 1996 timely
filed a notice of disagreement with the June 1996 rating
decision wherein the RO determined that the claim of service
connection for a right great toe disability was not well
grounded, was furnished a statement of case in August 1997,
and filed a substantive appeal as to this issue in October
1997. Accordingly, the Board has characterized this issue as
entitlement to service connection for a right great toe
disability.
FINDINGS OF FACT
1. The appellant's left knee injury with tear of the
anterior horn of the lateral meniscus is productive of
impairment which is moderate in degree and is manifested by
subjective complaints of pain, with objective findings of
swelling, tenderness to pressure, and some limitation of
motion.
2. The appellant's right ankle disability is currently
manifested by chronic strain in the right ankle, lateral
instability, limitation of motion with pain, and radiographic
evidence of early degenerative joint disease.
3. The claim of entitlement to service connection for a
right great toe disability is not supported by cognizable
evidence showing that the claim is plausible or capable of
substantiation.
CONCLUSIONS OF LAW
1. The criteria for an initial evaluation in excess of 20
percent for a left knee injury with tear of the anterior horn
of the lateral meniscus have not been met. 38 U.S.C.A. §§
1155, 5107(b) (West 1991); 38 C.F.R. §§ 3.321, 4.1-4.14,
4.40-4.46, 4.59, 4.71a, Diagnostic Code 5258 (1998).
2. The criteria for an evaluation in excess of 10 percent for
residuals of a right ankle disability have not been met. 38
U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2,
4.7, 4.10, 4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5271
(1998).
3. The claim of entitlement to service connection for a
right great toe disability is not well grounded. 38 U.S.C.A.
§§ 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
General Criteria
Initially, the Board notes that the provisions of 38 U.S.C.A.
§ 5107(a) have been met, in that the appellant's claims for
increased evaluations are well grounded and adequately
developed. This finding is based upon medical records
documenting treatment received for the service-connected
disabilities, and the appellant's evidentiary assertions that
his disabilities have increased in severity. See Drosky v.
Brown, 10 Vet. App. 251, 254 (1997) (citing Proscelle v.
Derwinski, 2 Vet. App. 629, 631-32 (1992)). The Board is
satisfied that no further assistance to the appellant is
required to comply with the duty to assist mandated by 38
U.S.C.A.
§ 5107(a). See Waddell v. Brown, 5 Vet. App. 454, 456
(1993); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).
Disability evaluations are determined by the application of
the VA Schedule for Rating Disabilities, which is based on
average impairment of earning capacity. Different diagnostic
codes identify the various disabilities. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4 (1998). Generally, the degrees of disability
specified are considered adequate to compensate for
considerable loss of working time from exacerbation or
illnesses proportionate to the severity of the several grades
of disability. 38 C.F.R.
§ 4.1. The words "moderate" and "severe" are not defined
in the VA Schedule for Rating Disabilities. Rather than
applying a mechanical formula, the Board must evaluate all of
the evidence to the end that its decisions are "equitable
and just." 38 C.F.R. § 4.6 (1998).
The determination of whether an increased evaluation is
warranted is based on review of the entire evidence of record
and the application of all pertinent regulations. See
Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the
evidence is assembled, the Secretary is responsible for
determining whether the preponderance of the evidence is
against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49,
55 (1990). If so, the claim is denied; if the evidence is in
support of the claim or is in equal balance, the claim is
allowed. Id.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
The primary focus in rating disabilities is on functional
impairment. 38 C.F.R.
§ 4.10. Disability of the musculoskeletal system is
primarily the inability, due to damage or infection in parts
of the system, to perform the normal working movements of the
body with normal excursion, strength, speed, coordination and
endurance. The functional loss may be due to absence of
part, or all, of the necessary bones, joints and muscles, or
associated structures or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. 38 C.F.R. §
4.40. As regards the joints, the factors of disability
reside in reductions of their normal excursion of movements
in different planes. Inquiry will be directed to
considerations including pain on movement. 38 C.F.R. §
4.45(f).
The Court has held that, where entitlement to compensation
has already been established, and an increase in the
disability rating is at issue, the present level of
disability is of primary concern. Although a rating
specialist is directed to review the recorded history of a
disability in order to make a more accurate evaluation, the
regulations do not give past medical reports precedence over
current findings. Francisco v. Brown, 7 Vet. App. 55, 58
(1994). With these regulations and this Court decision in
mind, the Board will address the issue of the evaluation of
the present level of disability resulting from the
appellant's service-connected disabilities.
Ratings shall be based as far as practicable, upon the
average impairments of earning capacity with the additional
proviso that the Secretary shall from time to time readjust
this schedule of ratings in accordance with experience.
To accord justice, therefore, to the exceptional case where
the schedular evaluations are found to be inadequate, the
Chief Benefits Director or the Director, Compensation and
Pension Service, upon field station submission, is authorized
to approve on the basis of the criteria set forth in this
paragraph an extra-schedular evaluation commensurate with the
average earning capacity impairment due exclusively to the
service-connected disability or disabilities. The governing
norm in these cases is: A finding that the case presents such
an exceptional or unusual disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical
the application of the regular schedular standards.
38 C.F.R. § 3.321(b)(1).
When, after consideration of all of the evidence and material
of record in an appropriate case before VA, there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3
(1998).
Factual Background
Service connection for residuals of a right ankle injury was
granted by rating action dated in August 1992. Service
medical records disclose that the appellant sustained a
twisting injury to the right ankle. He was evaluated with a
right ankle sprain. The appellant was evaluated with a
history of injury to the right ankle with symptoms to suggest
instability on VA examination conducted in July 1992. There
was no evidence of acute fractures shown on x-ray studies of
the right foot. A noncompensable rating was assigned for
this disability under Diagnostic Code 5299-5271. It was
noted that a separate rating evaluation was not warranted for
arthritis in this instance, as there was no objective
evidence of arthritis noted on examination.
A review of the record reflects that an increased evaluation
for the service-connected right ankle condition was the
subject of subsequent adjudications by the RO.
In this context, the record reflects that in July 1993, the
appellant sought an increased evaluation for his right ankle
disability. He also sought to include a secondary claim for
service connection for arthritis involving the right ankle.
Clinical records, dated from October 1992 to February 1993,
show that the appellant was seen intermittently for
complaints of recurrent right ankle swelling. Physical
examination in October 1992 showed a full range of motion
with mild lateral tenderness, and some laxity. During a
November 1992 evaluation, the appellant was evaluated with
chronic lateral ankle instability, and was issued a sleeve
for stability. He was also referred for physical therapy.
By December 1992, the appellant demonstrated a full range of
motion. There was no swelling noted on examination.
Tenderness was detected only on deep palpation. The
appellant was continued on Motrin, and instructed to continue
with therapeutic exercises. In January 1993, his right ankle
condition was manifested by swelling, with mild tenderness
along the lateral aspect of ankle. On evaluation in January
1998, the appellant reported symptoms of pain, with throbbing
and tingling sensations described as "shooting" along the
foot. A nerve entrapome was ruled out as a diagnostic
finding.
During a September 1993 VA examination, the appellant
reported a history of an inversion sprain during service. He
indicated that the right ankle gives way while he walks. It
was noted that the appellant wore an air cast on the right
ankle for stability. The appellant indicated that although
he wore the cast constantly, he continued to experience pain
on prolonged standing and ambulation. Examination showed
excessive plantar flexion with inversion of the right ankle.
Range of motion was evaluated as 18 degrees inversion, 22
degrees inversion, 20 degrees plantar flexion, and 10 degrees
dorsiflexion. X-ray studies were negative for any findings.
It was noted that there was no evidence of arthritis noted on
radiographic examination. The diagnostic impression was
lateral ankle instability of the right ankle. In November
1993, the RO granted an increased evaluation from zero
percent to 10 percent under Diagnostic Code 5271, based upon
a finding of limitation of motion.
In October 1994, the appellant sought an increased evaluation
for his service-connected disability. In support of his
request, the appellant submitted an October 1994 clinical
report, which documented treatment he received for his left
knee. This report noted that the appellant presented with
complaints of left knee pain and swelling. He reported a
twisting injury to the left knee eight weeks earlier, with
persistent swelling, effusion, and instability since that
time. There was no reference in this report to the service-
connected right ankle.
Clinical records, dated from December 1992 to December 1994,
show that the appellant was seen on an emergency basis in
March 1994, when he reported that his right ankle gave way
causing him to fall, injuring his left knee. On examination,
he demonstrated a full range of motion of the right ankle,
with no evidence of tenderness. The left knee was evaluated
as stable. Examination of the knee showed some laxity noted
along the lateral aspect of the ankle. The examiner noted
that the appellant exhibited a full range of motion of the
left knee, with patella pain and mild swelling. The clinical
impression included findings of chronic right ankle pain, and
a bruised left knee.
When evaluated in May 1994, the appellant reported continued
pain, and swelling following his inversion injury to the left
knee. He also reported episodes of the left knee popping and
catching. Physical examination showed the effusion,
tenderness, and atrophy of the quadriceps. Lachman's test
was positive. Examination of the right ankle showed mild
lateral swelling, and tenderness. There was no evidence of
right ankle instability noted on examination. In May 1994,
the appellant complained of right ankle and left knee pain.
He reported no relief with medication. Examination conducted
at that time showed medial tenderness, with slight effusion
of the left knee. The right ankle showed minimal swelling.
The appellant was issued knee pads.
A July 1994 clinical report noted that the appellant
exhibited a full range of motion of the right ankle on
examination. There was mild pain on inversion. X-ray
studies of the ankle revealed minimal degenerative joint
disease.
An October 1994 clinical notation indicated that the
appellant experienced pain and swelling of the left knee. It
was noted that he was unable to perform heavy labor, or
prolonged walking, standing, or lifting due to his left knee
symptoms. Examination showed effusion, with medial and
lateral joint line tenderness. X-ray studies of the left
knee were negative for abnormalities.
A November 1994 magnetic resonance imaging (MRI) study of the
left knee revealed a tear of the anterior horn, lateral
menisci, joint effusion, and synovial hypertrophy versus
debris, synovial region of the lateral femoral condyle. A
December 1994 clinical report indicated that follow-up
examination of the left knee revealed patellofemoral
symptoms. The appellant exhibited a full range of motion of
the knee. It was noted that these findings were most
consistent with patellofemoral symptoms. The appellant was
continued on prescribed medication.
On VA examination in February 1995, the appellant reported
subjective complaints of discomfort along the medial aspect,
and instability symptoms referable to the right ankle. It
was noted that the appellant was treated with an ankle brace
and non-steroidal anti-inflammatory medications. The medical
report noted that the appellant was primarily employed at
that time as a cashier. Physical examination showed lateral
instability. It was noted that the medial aspect of the
ankle demonstrated good ligament support.
The appellant achieved dorsiflexion to nearly nine degrees,
and plantar flexion to 45 degrees. X-ray studies of the
right ankle were normal. The diagnostic impression was
history of injury of the right ankle, with apparent
ligamentous injury and chip fracture by history, with
residual lateral instability noted clinically. The RO
continued the rating evaluation for the service-connected
right ankle disability in a February 1995 rating decision.
The appellant sought an increased evaluation for his service-
connected right ankle disability in May 1995. He also
requested service connection for his left knee condition due
to his service-connected right ankle condition.
Evidence reviewed in conjunction with this claim included
clinical records, dated from May 1995 to June 1995. However,
these records document treatment for unrelated conditions.
By rating action, dated in August 1995, the RO continued the
assigned 10 percent evaluation for the service-connected
right ankle disability.
In correspondence, dated in October 1994, the appellant
indicated that his service-connected right ankle disability
had increased in severity. He also indicated that he now
experienced a left knee disorder due to his service-connected
right ankle disability. Evidence reviewed in conjunction
with this claim included clinical records, dated from May
1995 to September 1995.
A June 1995 orthopedic consultation report indicated that the
appellant was referred for instruction in ankle and knee
strengthening exercises. On examination, it was noted that
the appellant ambulated with a cane. He complained of
bilateral lower extremity pain with no relief. The appellant
exhibited a limited range of motion on inversion and eversion
of the right ankle. Range of motion of the left knee was
evaluated as normal. Strength was evaluated as +4/5 in the
left knee, and -4/5 in the right ankle. The remainder of
these clinical reports document treatment for unrelated
conditions.
The RO, in a June 1996 rating decision, continued the
assigned 10 percent evaluation for the right ankle
disability. Service connection for a disability of the left
knee was denied.
The appellant underwent VA examination in October 1996. The
medical examination report indicated that the appellant
reported subjective complaints of right ankle pain. It was
noted that the appellant reported that he was unable to walk
without use of an ankle brace. He also complained of left
knee pain, which reportedly rendered him unable to work due
to joint pain. On examination, the examiner noted that the
appellant was in mild pain distress on walking while wearing
left knee and right ankle braces. It was noted that the
appellant ambulated with a limp.
Evaluation of the musculoskeletal system revealed tenderness
along the lateral aspects of the right ankle. The examiner
noted that clinical lateral instability was shown.
Evaluation of the left knee showed tenderness around the
patella.
On range of motion studies, it was noted that motion of the
left knee was limited secondary to pain. Manual muscle test
of the left knee yielded results of 4+/5 for the hamstrings,
and 3+/5 for the quadriceps. Patellar flexion and inversion
were evaluated to be within normal limits. Range of motion
of the right ankle was evaluated as five degrees on eversion.
Dorsiflexion was evaluated as neutral, and plantar flexion
was evaluated within normal limits. Manual muscle test
yielded results of 4+/5 on patellar flexion and dorsiflexion
of the right ankle. Tests yielded results of 3+/5 on
eversion and inversion of the right ankle.
It was noted that earlier (November 1994) MRI studies of the
"left" ankle revealed a tear of the anterior horn lateral
meniscus, joint effusion, and synovial hypertrophy versus
debria synovial region of the later femoral condyle. On
subsequent testing in November 1996, range of motion of the
left knee was evaluated as zero degree extension to 120
degrees flexion. Range of motion for the right ankle was
noted as 40 degrees plantar flexion, 10 degrees dorsiflexion,
and 10 degrees eversion following range of motion exercises.
The diagnostic impression was chronic pain of the right ankle
secondary to traumatic arthritis, and chronic pain of the
left knee, status post tear of anterior horn of lateral
meniscus. With respect to the left knee disability, the
examiner noted that the incurrence of the left knee condition
was possibly secondary to the right ankle disability.
A November 1996 report indicated that the appellant was
instructed in therapeutic exercises. It was noted that he
demonstrated fair rehabilitation potential due to poor
compliance. The appellant indicated that the ankle brace
prevented the leg from giving way, but noted that the brace
caused swelling in the leg.
In May 1997, the RO granted service connection for left knee
tear of anterior horn of the lateral meniscus as secondary to
the service-connected right ankle disorder. A 20 percent
evaluation was assigned for the left knee condition under
Diagnostic Code 5258, based upon evidence of semilunar
cartilage dislocation with frequent episodes of locking,
pain, and effusion into the joint. The rating evaluation for
the right ankle disability was continued.
In correspondence, dated in October 1997, the appellant
indicated that he experienced constant pain associated with
the right ankle. He noted that he also experienced
functional limitation associated with the ankle. It was the
appellant's contention that he did not have full use of his
ankle, despite neutral findings on range of motion studies of
the ankle. He indicated that his right ankle disability was
further affected by constant swelling due to walking and
standing. It was the appellant's opinion that the extent of
his impairment was not demonstrated on VA examination, as
this examination was conducted during the early morning
hours, when his ankle symptoms were less severe. He
indicated that his symptoms generally increase in severity as
the day progresses.
In correspondence, dated in January 1998, the appellant
indicated that an accurate picture of the complete
manifestations of his left knee disorder were not apparent on
VA examination. He noted that his knee symptoms likewise
increase in severity throughout the day. In addition, he
noted that he experienced functional limitation due to his
left knee condition which, he maintained, was not fully
documented in the examination report.
During VA examination in September 1998, the appellant
reported symptoms of pain aggravated by prolonged weight
bearing, walking, or deep knee bends. He reported several
episodes of the knee locking usually in a position of 30 to
45 degrees of flexion, which required manipulative reduction.
It was noted that the appellant's treatment course consisted
of pain medication, non-steroidal anti-inflammatories,
physical therapy, and use of external supports. The
appellant reported that arthroscopy had been recommended. It
was noted that the appellant continued to work as a cashier.
On examination, the appellant reported continued right ankle
discomfort since the initial injury in service, and that he
frequently reinjured the ankle despite use of the brace. He
described symptoms of constant pain and swelling. The
examiner noted that the appellant wore a cohabitation type
splint on the right ankle, and an elastic sleeve on the left
knee. His gait was slightly antalgic on the left side.
Examination of the right ankle showed slight anterolateral
edema and effusion. Range of motion was evaluated as zero
degree to 10 degrees dorsiflexion, bilaterally. Plantar
flexion was evaluated as zero degree to 45 degrees,
bilaterally.
There was positive lateral instability of the right ankle to
eversion and inversion maneuvers, and on Drawer testing. The
examiner noted that there was no distinct point to the
appellant's anterolateral laxity. Examination also showed a
palpable absence of posterior portions of the lateral
ligament complex on the right side. Strength was evaluated
as 5/5. Distal circulation and sensation were intact. X-ray
studies showed early degenerative joint disease changes at
the distal tibiotalar and fibulo-talar joints. The
diagnostic impression was moderate post-traumatic instability
of the right ankle.
Objective findings on examination showed a 1+ effusion of the
left knee. Range of motion was evaluated as zero degree
extension to 130 degrees flexion on the left side, compared
to zero degree extension to 145 degrees on the right side.
There was slight lateral joint line tenderness to palpation,
and discomfort. Varus/valgus testing in zero degree and 30
degrees of flexion showed bilateral pseudo-laxity of the
medial collateral ligaments with firm endpoint. Lachman's
and Drawer testing were negative. Patellofemoral compression
was positive on the left side. The examiner noted a slight
prepatellar thickening with exquisite tenderness on the left
side. X-ray studies of the left knee revealed significant
lateral joint space narrowing. The diagnostic impression was
mild left prepatellar bursitis, and left lateral meniscal
tear.
In February 1999, the RO continued the assigned rating
evaluations for the service-connected right ankle and left
knee disabilities.
In correspondence, dated in February 1999, the appellant
generally reiterated his contentions that higher rating
evaluations were warranted for his service-connected
disabilities. Relative to the left knee condition, the
appellant reported that he was unable to achieve full range
of motion of the knee on recent VA examination without
manipulation by the examiner. He also noted that there was
significant pain on motion of the knee joint, and that the
joint "seemed to have a sticking point that was very
painful" when pressed beyond this point. It was the
appellant's contention that the right ankle was not stable,
and was manifested by severe functional limitation, and
limited mobility. The appellant indicated that his right
ankle symptoms impacted upon his left knee symptoms.
Overall, his disabilities of the lower extremities reportedly
had an adverse effect on the appellant's employability,
because of his inability to stand.
I. Entitlement to an initial evaluation
in excess of 20 percent for a left knee
injury with tear of the anterior horn of
the lateral meniscus.
Analysis
To summarize, the evidence shows that the appellant sustained
a twisting injury to his left knee. Medical opinion
indicated that the left knee injury was possibly due to
instability associated with the service-connected right ankle
disability. The evidence of record shows that the left knee
condition is manifested by limitation of motion, slight
effusion, joint line tenderness, and has resulted in an
antalgic gait on the left side, with significant joint space
narrowing as shown on x-ray studies. The appellant has
reported subjective complaints of pain and swelling, with
episodes of locking. He has reported no relief with
medication. He also reported that his left knee condition
requires bracing, and physical therapy.
The RO has evaluated the left knee disability as 20 percent
disabling under Diagnostic Code 5258.
Under this provision, a 20 percent evaluation is warranted
for dislocated semilunar cartilage, with frequent episodes of
"locking," pain, and effusion into the joint. As this is
the maximum rating available under this diagnostic code, the
Board must evaluate the appellant's left knee disability
under another applicable diagnostic code which allows for an
evaluation in excess of 20 percent. In this regard, the
Board notes that where a particular disability is not listed,
it will be permissible to rate under a closely related
disease or injury in which not only the functions affected,
but the anatomical localization and symptomatology are
closely analogous. 38 C.F.R. §§ 4.20, 4.27; see also
Lendenmann v. Principi, 3 Vet. App. 345 (1992); Pernorio v.
Derwinski, 2 Vet. App. 625 (1992).
The Board has considered the possible assignment of other
Diagnostic Codes. The assignment of a particular Diagnostic
Code is "completely dependent on the facts of a particular
case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One
Diagnostic Code may be more appropriate than another based on
such factors as an individual's relevant medical history, the
current diagnosis and demonstrated symptomatology. Any change
in Diagnostic Code by a VA adjudicator must be specifically
explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629
(1992). In this case, the Board has considered whether
another rating code is "more appropriate" than the one used
by the RO. See Tedeschi v. Brown, 7 Vet. App. 411, 414
(1995).
The appellant's left knee disability appears to be most
analogous to "other" impairment of the knee as contemplated
in 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under this
provision, a slight impairment of either knee, including
recurrent subluxation or lateral instability, warrants a 10
percent evaluation. A 20 percent evaluation requires
moderate impairment of the knee, and a 30 percent evaluation
requires a severe impairment of the knee.
The Board finds in this regard that the clinical findings of
record, when considered in light of the appellant's
subjective complaints of pain, do not reveal a left knee
disability picture which warrants an evaluation in excess of
the currently assigned 20 percent for the left knee.
The appellant's left knee disability is manifested primarily
by a 10 degree loss of motion on flexion of the knee, slight
effusion, and joint line tenderness to palpation or pressure.
There is, however, no objective evidence of any significant
subluxation or lateral instability, and limitation described
by the appellant cannot be characterized as demonstrating
more than moderate overall impairment for the left knee. In
fact, the evidence shows an increase in mobility on flexion
of the left knee during VA examination in 1998, when compared
to measured flexion of the knee on range of motion studies
conducted in conjunction during the 1996 VA examination.
Furthermore, as no significant limitation of motion is
objectively shown, a rating higher than the currently
assigned 20 percent is not warranted under either of the
diagnostic codes pertaining to limitation of motion of the
knee and leg. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260
and 5261 (1998).
Even if the functional limitations described by the appellant
due to pain could be assessed in terms of degrees of
limitation of motion, such impairment has not been
objectively shown to equate to flexion limited to 15 degrees
or less, or extension limited to 20 degrees or more, the
criteria for an evaluation in excess of 20 percent under
Diagnostic Codes 5260 and 5261, respectively.
Finally, in the absence of evidence of ankylosis (Diagnostic
Code 5256) or impairment of the tibia and fibula (Diagnostic
Code 5262), there is no basis for evaluation of the
appellant's left knee disability under any other potentially
applicable diagnostic code providing for an evaluation in
excess of the currently assigned 20 percent for the left
knee.
The Board has also considered whether an increased evaluation
could be assigned for the left knee disability on the basis
of functional loss due to the appellant's subjective
complaints of pain. 38 C.F.R. § 4.40, 4.45, 4.59; see also
DeLuca v. Brown, 8 Vet. App. 202, 204-05 (1995).
The Board notes that the element of pain in the functioning
of the appellant's knee is the crux of the basis for a
disability rating using §§ 4.40 and 4.45. However, none of
the factors demonstrative of functional loss due to pain,
previously enumerated, are clearly evident in the case before
the Board.
Further, a review of the record does not show that the
appellant has degenerative arthritis, evidenced by x-ray
findings, contemplated in § 4.59 and Diagnostic Code 5003, to
warrant consideration pursuant to Esteban v. Brown, 6 Vet.
App. 259, 261 (1994) and VAOPGCPREC 23-97, 62 Fed. Reg. 63604
(1997), for a greater disability rating. Therefore, the
current 20 percent rating is based on functional loss due to
pain in the left knee.
Even considering these regulations and the appellant's
assertions that he suffers from pain and limitation of
motion, the Board finds that the recent clinical evidence
shows no additional functional limitation with respect to
flexion and extension to the degree that would support an
increased evaluation under Diagnostic Code 5260 or Diagnostic
Code 5261. Normal joint motion of the knee is measured as
zero degree extension to 140 degrees flexion. See 38 C.F.R.
§ 4.71a, Plate II (1998).
As such, the Board finds that, in this case, the objective
medical findings recorded during VA examinations are of
greater probative value than the appellant's statements
advanced on behalf of his claims. Therefore, the Board
concludes that the preponderance of the evidence fails to
demonstrate such disabling pain as would constitute
additional functional impairment or warrant consideration of
an evaluation in excess of 20 percent ratings for the left
knee disability with application of the criteria of 38 C.F.R.
§§ 4.40, 4.45 and 4.59.
Thus, the highest possible evaluation under 38 C.F.R. §§
4.71a, Diagnostic Codes 5257 and 5260 would be less than or
equal to that which he is currently receiving under
Diagnostic Code 5258. The Board notes that even when taking
into consideration the Court's holding in DeLuca, as well as
the provisions of 38 C.F.R. §§ 4.40 and 4.45, the Board has
no basis to find ankylosis of the knee, limitation of
extension of the leg to 30 degrees, or nonunion of the tibia
and fibula.
The medical evidence of record does not support such findings
in this instance. While it has been indicated that the
appellant wears a knee brace, there has been no indication
that the appellant has nonunion of the tibia or fibula and
ankylosis of the knee has not been found.
The Board notes that as to the veteran's left knee
disability, this case involves an appeal as to the initial
rating assigned by the RO, rather than where entitlement to
compensation had previously been established. Fenderson v.
West, 12 Vet. App. 119 (1999). In initial rating cases,
separate ratings can be assigned for separate periods of time
based on the facts found, a practice known as "staged"
ratings. Id. at 9. In the case at hand, the Board finds
that a staged rating is not appropriate.
Although the veteran is entitled to the benefit of the doubt
where the evidence is in approximate balance, the benefit of
the doubt doctrine is inapplicable where, as here, the
preponderance of the evidence is against the claim for an
initial evaluation in excess of 20 percent for his left knee
disability. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
II. Entitlement to an increased
evaluation for residuals of a right ankle
injury, currently evaluated as 10 percent
disabling.
Analysis
To summarize, the appellant sustained a twisting injury to
the right ankle, evaluated as a right ankle sprain, during
service. There was no x-ray evidence of arthritis noted on
examination at that time. Service connection was granted for
the right ankle disability, however, a noncompensable rating
evaluation was assigned. The appellant thereafter received
intermittent treatment for continued right ankle symptoms.
When evaluated between 1992 and 1993, the appellant was noted
to have recurring symptoms of instability for which he
utilized a brace, and tenderness. However, he demonstrated a
full range of motion of the ankle. On VA examination in
1993, there was evidence of some limitation of motion of the
right ankle, but no evidence of arthritis on x-ray studies of
the ankle. Clinical evaluations, conducted in 1994, showed
the right ankle condition to be manifested by laxity,
instability, with subjective complaints of pain not relieved
by medication. X-ray studies conducted during this period
revealed minimal degenerative joint disease.
VA examination in 1995 showed continued instability of the
right ankle, with limitation of motion. However, x-ray
studies performed during this evaluation were evaluated as
normal. On clinical evaluation in 1995, the appellant
continued to demonstrate limitation of motion of the right
ankle.
On VA examination in 1996, there was evidence of instability,
tenderness, and limitation of motion secondary to pain.
Range of motion studies showed a loss of five degrees on
plantar flexion, and dorsiflexion to ten degrees. Finally,
on the most recent VA examination, in 1998, clinical findings
showed positive lateral instability and limitation of motion
on dorsiflexion, with x-ray evidence of early degenerative
joint disease. The examiner opined that the right ankle
condition was manifested by moderate impairment.
The RO has assigned a 10 percent evaluation for the
appellant's right ankle disability pursuant to 38 C.F.R. §
4.71a, Diagnostic Code 5271.
Under Diagnostic Code 5271, a 10 percent evaluation is
warranted for moderate limitation of ankle motion. A maximum
evaluation of 20 percent is warranted for marked limitation
of ankle motion. The normal range of ankle dorsiflexion is
from 0 degree to 20 degrees, and the normal range of ankle
plantar flexion is from 0 degree to 45 degrees. 38 C.F.R. §
4.71, Plate II (1998).
The appellant's right ankle disability may also be rated
under Diagnostic Code 5270. Diagnostic Code 5270 provides
that ankylosis in plantar flexion, less than 30 degrees,
warrants a 20 percent rating. When the ankle is ankylosed in
plantar flexion, between 30 degrees and 40 degrees, or in
dorsiflexion between 0 and 10 degrees, a 30 percent rating is
warranted. Ankylosis of the ankle in plantar flexion at more
than 40 degrees, or in dorsiflexion at more than 10 degrees
or with abduction, adduction, inversion or eversion deformity
warrants a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic
Code 5270.
In the instant case, the appellant maintains that his current
rating is not high enough for the amount of disability that
his right ankle causes him. The appellant indicates that he
suffers from right ankle pain and instability. He further
states that due to his right ankle disability, he cannot
stand or walk for long periods of time, or engage in physical
activity for extended periods. In this regard, lay
statements are considered to be competent evidence when
describing symptoms of a disease or disability or an event.
However, symptoms must be viewed in conjunction with the
objective medical evidence of record. Espiritu v. Derwinski,
2 Vet. App. 492 (1992).
The evidence of record reveals that the appellant's right
ankle disability is manifested by no more than moderate
impairment. On the most recent VA examination, there was
evidence of edema and effusion. The appellant was able to
dorsiflex the ankle to 10 degrees, and exhibited normal
plantar flexion of the ankle.
While the appellant demonstrated some lateral instability, he
was evaluated with normal muscle strength and was 5/5.
Sensation and distal circulation were intact. The examiner
noted that there was no evidence of deformity of the ankle.
Radiographic examination was significant for evidence of
early onset of degenerative joint disease. The impression
was of post-traumatic instability of the right ankle.
According to the examiner, at present, the appellant's ankle
showed evidence of moderate impairment.
The Board has carefully reviewed the records of treatment and
evaluation of the appellant's service-connected residuals of
a right ankle fracture. In light of the above, and the fact
that the overall symptomatology, particularly when viewed in
conjunction with the appellant's complaints of pain and
pathology of degenerative changes, the Board determines that
the appellant's right ankle disability more closely defines
the criteria for a finding of moderate limitation of motion
of the right ankle, which warrants a 10 percent evaluation
under Diagnostic Code 5271. See generally DeLuca v. Brown, 8
Vet. App. at 204-205; 38 C.F.R. §§ 4.40, 4.45, 4.59.
In making this determination, the Board finds that the
evidence of record is not clinically characteristic of a
marked limitation of right ankle motion, and there is no
evidence of ankylosis of the right ankle, which are
necessarily required for a 20 percent evaluation under
Diagnostic Codes 5271 and 5270. Following a review of the
assembled evidence documenting the current state of the right
ankle condition, the Board finds that the appellant is most
appropriately evaluated, at this time, at 10 percent under
Diagnostic Code 5271.
Further, in reaching this determination, the Board has
considered the history of the appellant's right ankle
disability, as well as the current clinical manifestations
and the effect that this disability has on the earning
capacity of the appellant. See 38 C.F.R. §§ 4.1, 4.2, 4.41
(1997). The nature of the original disability has been
reviewed, as well as the functional impairment which can be
attributed to pain and weakness. See generally DeLuca,
supra; 38 C.F.R. §§ 4.40, 4.45. However, for the reasons
previously stated, the Board finds that the appellant's right
ankle disability simply is not impaired to a degree to
warrant a higher evaluation than that currently assigned
under the schedule for rating disabilities.
Although the veteran is entitled to the benefit of the doubt
where the evidence is in approximate balance, the benefit of
the doubt doctrine is inapplicable where, as here, the
preponderance of the evidence is against the claim for an
evaluation in excess of 10 percent for his right ankle
disability. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Extra-Schedular Consideration
The evidence demonstrates that the appellant is already in
receipt of the maximum schedular evaluation which may be
assigned for his left knee disability. The Board also notes
that the appellant has indicated that his employment as a
cashier is adversely affected by his current orthopedic
impairment (i.e., his left knee and right ankle
disabilities).
Pursuant to 38 C.F.R. § 3.321(b)(1) (1998), an extra-
schedular rating is in order where there exists such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization [due exclusively to service-
connected disability] such as render impractical the
application of the regular schedular standards. The test is
a stringent one for, the United States Court of Appeals for
Veterans Claims (Court) has held, "it is necessary that the
record reflect some factor which takes the claimant outside
of the norm of such veteran. The sole fact that a claimant
is unemployed or has difficulty obtaining employment is not
enough." Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).
Clearly, due to the nature and severity of the appellant's
left knee and right ankle disabilities, interference with the
appellant's employment status is foreseeable. However, the
Board finds that the record does not reflect frequent periods
of hospitalization because of the service-connected
disabilities at issue, nor interference with his employment
status to a degree greater than that contemplated by the
regular schedular standards, which are based on the average
impairment of employment. 38 C.F.R. §§ 4.1, 4.10.
Thus, the record does not present such an exceptional case
where the disability ratings assigned for the appellant's
left knee and right ankle disabilities are found to be
inadequate. See Van Hoose, supra; Moyer v. Derwinski, 2 Vet.
App. 289, 293 (1992) (noting that the disability evaluation
itself is recognition that industrial capabilities are
impaired).
Therefore, the Board finds that the criteria for submission
for an assignment of an extraschedular rating pursuant to 38
C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9
Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App.
218, 227 (1995).
In its evaluation of the above-referenced claims, the Board
has given consideration to the appellant's evidentiary
assertions. Where the issue is factual in nature, that is,
whether an incident occurred during service or whether a
clinical symptoms is present, the appellant is competent to
make assertions in that regard. Cartwright v. Derwinski, 2
Vet. App. 24 (1991). However, where the determinative issue
involves medical causation or a medical diagnosis, the
appellant is not qualified to make assertions in this area as
he lacks the necessary medical expertise or experience. King
v. Brown, 5 Vet. App. 19, 21 (1991); See also, Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).
In this case, the appellant reported increased and
debilitating symptomatology associated with his service-
connected disabilities. The clinical findings from the most
recent VA examination and his assertions, when considered in
light of the medical history of record, were not found to
support the assignment of increased evaluations for the
service-connected disabilities.
III. Entitlement to service connection
for a right great toe disability.
Factual Background
A review of the record discloses that the appellant initially
sought service connection for disability of the right great
toe in May 1995. By rating action, dated in June 1996, the
RO denied the appellant's claim.
In this regard, it was the RO's determination that the
evidence did not demonstrate a chronic disability of the
right great toe was incurred in service, or shown to be
related to the service-connected right ankle disability. It
was noted that the evidence reviewed in conjunction with this
rating determination included the service medical records,
and VA medical examination report.
The appellant underwent VA examination in October 1996. He
reported subjective complaints of pain in the right great
toe, with difficulty walking due to pain. On physical
examination, it was noted that the range of motion of the
right great toe was slightly limited secondary to pain.
There was no evidence of joint swelling detected. Range of
motion of the right great toe was evaluated as 30 degrees
metatarsophalangeal, and 90 degrees interphalangeal. The
diagnostic impression was chronic pain of the right big toe
secondary to traumatic arthritis.
In a May 1997 rating decision, the RO denied service
connection for a right great toe disability. This
determination was predicated upon the RO's finding that the
evidence did not demonstrate that the claimed great toe
condition was incurred during service, or related to the
right ankle disability.
In correspondence, dated in October 1997, the appellant
indicated that he sustained a fracture of the right great toe
in conjunction with his ankle injury. He noted that this
trauma resulted in osteoarthritis.
On VA examination, conducted in September 1998, the appellant
reported a history of injury to the right lower extremity in
service. He complained of pain with range of motion and
exposure to cold weather about the hallux interphalangeal
joint. Physical examination showed a full fluid range of
motion in both the right hallux interphalangeal joint without
crepitus or swelling. There was tenderness to palpation
about the joint line, particularly with plantar flexion of
the first metatarsophalangeal joint at the end of range of
motion. A bunion deformity was also noted on examination.
The diagnostic impression was very mild or early degenerative
joint disease about the right hallux interphalangeal joint
and first metatarsophalangeal joint, and bunion deformity,
greater on the right side than left side.
In an amended medical examination report, dated in September
1998, the examiner noted that the claims folder was reviewed
in conjunction with this examination. In that context, the
examiner noted that his review of the recorded medical
history indicated that the appellant sustained an ankle joint
sprain during service. It was noted that the evidence of
record did not document specific injury to the great toe.
Based upon this evidence, it was the examiner's opinion that
the "relationship of [the appellant's] minimal degenerative
joint disease in the great toe and/or correlation to the
ankle joint sprain would be questionable and/or without
correlation.."
In a February 1999 rating action, the RO determined that new
and material sufficient to reopen the previously denied claim
for service connection for a right great toe disability had
not been presented.
Criteria
In general, under pertinent law and VA regulations, service
connection requires evidence that a disease or disorder was
incurred in or aggravated during service or that the disease
or disorder is otherwise attributable to service. See 38
U.S.C.A.
§§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1998). Service
connection may also be granted for disease or disability
which is diagnosed after discharge from service, when all of
the evidence establishes that such disease was incurred
during service. 38 C.F.R. § 3.303(d) (1998); Cosman v.
Principii, 3 Vet. App. 303, 305 (1992).
Service connection on a secondary basis is warranted when it
is demonstrated that a disorder is proximately due to or the
result of a disorder of service origin. 38 C.F.R. § 3.310
(1998).
The threshold question to be answered in this case is whether
the appellant has presented evidence of a well grounded
claim; that is, a claim which is plausible and meritorious on
its own or capable of substantiation. If he has not, his
appeal must fail. 38 U.S.C.A. § 5107(a); Murphy v.
Derwinski, 1 Vet. App. 78 (1990).
Case law provides that although a claim need not be
conclusive to be well grounded, it must be accompanied by
evidence. A claimant may submit some supporting evidence
that justifies a belief by a fair and impartial individual
that the claim is plausible. Dixon v. Derwinski, 3 Vet.
App. 261, 262 (1992); Tirpak v. Derwinski, 2 Vet. App. 609,
611 (1992).
In order for a claim to be well grounded, there must be
competent evidence of a current disability (a medical
diagnosis) of an incurrence or aggravation of a disease or
injury in service (lay or medical evidence), a nexus between
the inservice injury or disease and the current disability
(medical evidence). Caluza v. Brown, 7 Vet. App. 498 )1995).
Where the determinative issue involves the question of a
medical diagnosis or causation, only individuals possessing
specialized training and knowledge are competent to render a
medical opinion. Espiritu v. Derwinski, 2 Vet. App. 492
(1992).
In determining whether a claim is well grounded, the
claimant's evidentiary assertions are presumed true unless
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion. King v.
Brown, 5 Vet. App. 19, 21 (1993).
The United States Court of Appeals for Veterans Claims
(Court) has held that if an appellant fails to submit a well
grounded claim, VA is under no duty to assist him/her in any
further development of the claim. 38 U.S.C.A. § 5107(a);
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1994); Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993); 38 C.F.R. § 3.159(a)
(1998).
When, after consideration of all of the evidence and material
of record in an appropriate case before VA, there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3
(1998).
Analysis
Section 5107 of Title 38, United States Code unequivocally
places an initial burden upon the claimant to produce
evidence that his claim is well grounded; that is, that his
claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139
(1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993).
Because the appellant has failed to meet this burden, the
Board finds that his claim of service connection for a right
great toe disability must be denied as not well grounded.
The appellant contends, in essence, that his current chronic
disability of the right great toe was incurred during
service. The appellant maintains that he has continued to
experience symptoms involving the right great toe since his
release from service. In this regard, lay statements are
considered to be competent evidence when describing the
features or symptoms of an injury or illness. Layno v.
Brown, 6 Vet. App. 465 (1994); see also Falzone v. Brown, 8
Vet. App. 398, 405 (1995).
However, when the determinative issue involves a question of
medical causation, as here, only individuals possessing
specialized training and knowledge are competent to render an
opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The
evidence does not show that the appellant possesses medical
expertise, nor is it contended otherwise. Therefore, his
opinion that his current disability of the right great toe is
related to the injury to the right lower extremity during, in
which he sustained a right ankle sprain, is not competent
medical evidence.
The Board observes that supplemental treatment records
submitted in support of this claim are negative for any
competent medical opinion evidence that any current
disability of the right great toe is etiologically related to
service or any incident therein. Following a careful and
considered review of the evidence submitted in support of the
appellant's claim, the Board concludes that the evidence does
not show that his current disorder of the right great toe is
the result of his right ankle sprain in service. In effect,
the medical evidence does not include competent medical
evidence or a competent medical opinion establishing an
etiological link between service and any current disability
of the right great toe.
The Board notes that the veteran has not submited any
competent medical evidence to show that he has a right great
toe disability which has been linked to his period of service
or a service-connected disability. In other words, the
appellant's claim is predicated on his own lay opinion. As
it is the province of trained health care professionals to
enter conclusions which require medical opinions as to
causation, Grivois, the appellant's lay opinion is an
insufficient basis upon which to find this claim well
grounded. Espiritu, King.
Accordingly, as a well grounded claim must be supported by
evidence and not merely allegations, Tirpak, the appellant's
claim for service connection for a right great toe disability
must be denied as not well grounded.
The Board further finds that the RO advised the appellant of
the evidence necessary to establish a well grounded claim,
and the appellant has not indicated the existence of any post
service medical evidence that has not already been obtained
that would well ground his claim. McKnight v. Gober, 131
F.3d 1483 (Fed.Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed.
Cir. 1997).
As the appellant has not submitted a well grounded claim for
service connection for a right great toe disability, the
doctrine of reasonable doubt has no application to his case.
ORDER
Entitlement to an initial evaluation in excess of 20 percent
for a left knee injury with tear of the anterior horn of the
lateral meniscus is denied.
Entitlement to an evaluation in excess of 10 percent for
residuals of a right ankle injury is denied.
The veteran not having submitted a well grounded claim of
entitlement to service connection for disability of the right
great toe, the appeal is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals